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Form a Business

MORTGAGES OF REAL PROPERTY

K.S.A. ch. 58, art. 23
in effect

K.S.A. 58-2301 Lien jurisdiction; possession in mortgagor.

58-2301. Lien jurisdiction; possession in mortgagor. In the absence of stipulations to the contrary, the mortgagor of real property may retain the possession thereof. G.S. 1868, ch. 68, § 1; October 31; R.S. 1923, 67-301. Law Review and Bar Journal References: "The Mortgagee's Interest in Rents: Policy and Proposals," Patrick A. Randolph, Jr., 29 K.L.R. 1, 8 (1980). CASE ANNOTATIONS 1. Mortgagee has no right of possession even after condition broken. Seckler v. Delfs, 25 Kan. 159, 165. 2. Mortgagor has legal right to retain possession of the land; ejectment will not lie against a mortgagee in possession. Kelso v. Norton, 65 Kan. 778, 791, 70 P. 896. 3. Purchaser at foreclosure sale subrogated to rights of mortgagee. Mortgage Co. v. Gray, 68 Kan. 100, 102, 74 P. 614. 4. Mortgagee in possession not subject to ejectment until debt paid. Stouffer v. Harlan, 68 Kan. 135, 146, 74 P. 610. 5. Mortgagee in possession may compel redemption, or have right barred. Henthorn v. Security Co., 70 Kan. 808, 810, 811, 79 P. 653. 6. Immediate possession and occupancy authorized. Hall v. Goldsworthy, 136 Kan. 247, 249, 14 P.2d 659. 7. Mentioned in discussing "property of another" within meaning of K.S.A. 21-581. State v. Crosby, 182 Kan. 677, 682, 683, 324 P.2d 197. 8. Kansas is lien theory mortgage state; mortgage attaches as liens from time of recording. In re Stanley Station Associates, L.P., 139 B.R. 990 (1992). 9. Bona fide land purchaser has priority over prior unrecorded conveyance. In Re Southworth, 22 B.R. 376, 377, 379 (1982). 10. Trustee as bona fide purchaser had priority over creditor's released mortgage and later unrecorded mortgage. In re Southern, 32 B.R. 761, 762, 766 (1983). 11. The effect failure to record assignment of mortgage had on rights of the assignee in relation to junior mortgagees discussed. Bank Western v. Henderson, 255 Kan. 343, 350, 874 P.2d 632 (1994).

K.S.A. 58-2302 Deed as mortgage.

58-2302. Deed as mortgage. When a deed of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such deed shall not be defeated or affected as against any person other than the grantee or his or her heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the register of deeds of the county where the lands lie. G.S. 1868, ch. 68, § 2; October 31; R.S. 1923, 67-302. Law Review and Bar Journal References: Comment on the equitable mortgage, 5 K.L.R. 114, 117 (1956). CASE ANNOTATIONS 1. Deed intended as a mortgage held to operate as mortgage. Bank of Glasco v. Springfield Ins. Co., 5 Kan. App. 388, 49 P. 329. 2. Actual notice of record of instrument of defeasance, sufficient. Pope v. Nicholas, 61 Kan. 230, 233, 59 P. 257. 3. Transaction held a conditional sale; when. Yost v. Bank, 66 Kan. 605, 608, 72 P. 209. 4. Warranty deed and contract giving right to redeem not mortgage. Martin v. Allen, 67 Kan. 758, 761, 74 P. 249. 5. Bond in ordinary form is not an instrument of defeasance. Holmes v. Newman, 68 Kan. 418, 420, 75 P. 501. 6. Where no continuing debt conveyance not a mortgage. Fabrique v. Mining Co., 69 Kan. 733, 737, 77 P. 584. 7. Deed shown to be only mortgage by parol evidence. Saylor v. Crooker, 89 Kan. 51, 54, 130 P. 689. 8. Deed and contract to reconvey evidencing a debt constitute mortgage. McGill v. National Bank of Topeka, 147 Kan. 605, 77 P.2d 944. 9. Cited; deed in form held mortgage; not within statute of frauds. Jones v. Jones, 161 Kan. 284, 292, 167 P.2d 634. 10. Deed held not mortgage where debtor-creditor relationship does not exist. Roberts v. Williams, 179 Kan. 498, 297 P.2d 206.

K.S.A. 58-2303 Short form of mortgage; warranty.

58-2303. Short form of mortgage; warranty. Any mortgage of lands, worded in substance as follows: "A.B. mortgages and warrants to C.D. (here describe the premises), to secure the payment of (here insert the sum for which the mortgage is granted, or the notes or other evidences of debt, or description thereof, sought to be secured, also the date of payment)," the said mortgage being dated, and duly signed and acknowledged by the grantor, shall be deemed and held to be a good and sufficient mortgage to the grantee, his or her heirs, assigns, executors and administrators, with warranty from the grantor and his or her legal representatives of a perfect title in the grantor, and against all previous encumbrances; and if in the above form the words "and warrants" be omitted, the mortgage shall be good without warranty. L. 1887, ch. 151, § 3; June 20; R.S. 1923, 67-303. Attorney General's Opinions: Assessment of mortgage registration tax on future advances clause. 86-79. CASE ANNOTATIONS 1. No particular form required if necessary elements contained. Hall v. Goldsworthy, 136 Kan. 247, 249, 14 P.2d 659. 2. No particular form of instrument or words are necessary to create mortgage. Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057.

K.S.A. 58-2304 Assignments; recording not notice to mortgagor.

58-2304. Assignments; recording not notice to mortgagor. The recording of the assignment of a mortgage shall not be deemed of itself notice to a mortgagor, his or her heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee. G.S. 1868, ch. 68, § 3; October 31; R.S. 1923, 67-304. Cross References to Related Sections: Assignments not recorded, see 58-2321. CASE ANNOTATIONS 1. Payment of nonnegotiable note to original payee, without notice, satisfies. Chapman v. Steiner, 5 Kan. App. 326, 48 P. 607. 2. Record not made of the assignment; effect. Burhans v. Hutcheson, 25 Kan. 625. 3. Payor held charged with notice of assignment duly recorded. Detwilder v. Heckenlaible, 63 Kan. 627, 66 P. 653. 4. Mortgage assigned; assignment not recorded; second mortgage executed; priority lien. Middlekauff v. Bell, 111 Kan. 206, 213, 207 P. 184. 5. Unrecorded assignment of mortgage; payment to original mortgagee; statute construed. Allen v. Waddle, 111 Kan. 690, 691, 694, 208 P. 551. 6. Cited in holding mortgagee bond did not constitute assignment of mortgage. Shawnee County Comm'rs v. Cook, 141 Kan. 677, 681, 42 P.2d 568.

K.S.A. 58-2305 Purchase money mortgage; priority.

58-2305. Purchase money mortgage; priority. A mortgage given by a purchaser to secure the payment of purchase money shall have preference over a prior judgment against such purchaser. G.S. 1868, ch. 68, § 4; October 31; R.S. 1923, 67-305. Law Review and Bar Journal References: The future advance mortgage, 1 W.L.J. 453, 460 (1961). CASE ANNOTATIONS 1. Lien for purchase price created by express agreement. Smith v. Rowland, 13 Kan. 245. 2. Mortgage for purchase price takes priority over prior judgments. Babcock v. Jones, 15 Kan. 296; Plumb v. Bay, 18 Kan. 415; Holden v. Garrett, 23 Kan. 98; Jackson v. Reid, 30 Kan. 10, 1 P. 308. 3. Mortgage given third party for loan to pay vendor is purchase-money mortgage. Home Owners' Loan Corp. v. Humphrey, 148 Kan. 779, 784, 85 P.2d 7. 4. Cited; chattel mortgage for purchase price given priority over mechanics' lien. Finnegan v. Ihinger, 150 Kan. 357, 367, 92 P.2d 538. 5. Cited; mechanic's lien holder should secure personal judgment and foreclosure in same action. Home State Bank v. P.B. Hoidale Co., 239 Kan. 165, 166, 169, 718 P.2d 292 (1986). 6. Mechanic's lien attaching after execution but before recording of purchase money mortgage has priority where lienholder has no actual knowledge of mortgage. Shade v. Wheatcraft Industries, Inc., 248 Kan. 531, 536, 538, 809 P.2d 538 (1991). 7. Issue of purchase money mortgage having priority over judgment lien where mortgage used to purchase land and construct house examined. Resolution Trust Corp. v. Bopp, 18 Kan. App. 2d 271, 272, 850 P.2d 939 (1993). 8. Cited; purchase money first mortgage takes priority over tax lien. American General Financial Services, Inc. v. Carter, 39 Kan. App. 2d 683, 686, 687, 184 P.3d 273 (2008). 9. Bank's purchase money lien in debtor's fee interest in property did not have priority over first-filed lien arising from ground lease mortgage on same property. In re Black Angus Holdings, LLC, 434 B.R. 612 (2010).

K.S.A. 58-2306 Discharge or assignment of recorded mortgage; procedure.

58-2306. Discharge or assignment of recorded mortgage; procedure. (a) Except as otherwise provided by this section, any mortgage of real property that has been or may hereafter be recorded shall be assigned or discharged by an instrument acknowledging the assignment or satisfaction of such mortgage, signed by the mortgagee or such mortgagee's duly authorized attorney in fact, assignee of record, personal representative or by the lender or a designated closing agent acting as a closing agent in the sale, financing or refinancing of the real estate subject to such mortgage who has caused the indebtedness to be paid in full upon compliance with K.S.A. 58-2309a , and amendments thereto, and duly acknowledged and certified as other instruments affecting real estate. Such instrument shall contain the name of the mortgagor and mortgagee, a legal description of the property and the volume and page in which the mortgage is recorded. (b) Where the mortgagee or assignee of record is deceased, and where the estate of such deceased mortgagee or assignee of record is in process of administration, in this or any other state, an assignment or a full release of such mortgage may be made by the executor or administrator without any showing as to the provisions of the will of the deceased, but there must accompany such assignment or release, as a part thereof, a certificate from a court of competent jurisdiction appointing such executor or administrator, under the hand of its proper officer, and attested by its seal, certifying as to such appointment, and that such executor or administrator is, at the date of such assignment or release, still so acting under the authority of such court. Such certificate shall not be required when the executor or administrator is acting under appointment of the district court of the county where the real estate mortgaged is located. Where the estate of such deceased has not been administered upon, or where the estate of such deceased has been administered and settled and the executor or administrator discharged, such assignment or release may be made by the heirs at law or legatee of such deceased mortgagee or assignee, and competent evidence must be furnished by them of the fact. (c) Where the mortgagee or assignee of record is a firm or partnership, such mortgage shall be assigned or discharged by an instrument acknowledging the assignment or satisfaction of such mortgage as hereinbefore provided. Such instrument shall be signed either by each member of the firm or partnership, or by the firm or partnership, or by the firm or partnership by one of the members thereof. (d) Any mortgage which, prior to July 1, 1977, has been released by a notation on the original mortgage instrument and signed by the mortgagee or the mortgagee's duly authorized attorney in fact, assignee of record or personal representative may be recorded in the office of the register of deeds of the county where the mortgaged property is located. When recorded, such release shall have the same force and effect as mortgages discharged in accordance with subsection (a). G.S. 1868, ch. 68, § 5; L. 1903, ch. 365, § 1; R.S. 1923, 67-306; L. 1971, ch. 86, § 2; L. 1976, ch. 145, § 205; L. 1977, ch. 191, § 1; L. 1979, ch. 174, § 1; L. 1995, ch. 173, § 1; July 1. Source or prior law: L. 1862, ch. 151, §§ 1, 2. Attorney General's Opinions: Mortgage registration and intangibles; mortgage registration; instruments subject thereto. 87-162. CASE ANNOTATIONS 1. Written discharge on margin by register of deeds no discharge. Burhans v. Hutcheson, 26 Kan. 625, 629. 2. Purchase of mortgaged land; mortgagee releases mortgage prior; purchaser protected. Lewis v. Kirk, 28 Kan. 497, 506. 3. Mortgage of record takes priority over mortgage not of record. Jackson v. Reid, 30 Kan. 10, 1 P. 308. 4. Legal and equitable title of vendor; evidence to show. O'Neill v. Douthitt, 39 Kan. 316, 318, 18 P. 199. 5. Mortgage and assignment should be recorded. Perkins v. Matteson, 40 Kan. 165, 19 P. 633. 6. Release by attorney must show record of power of attorney. O'Neill v. Douthitt, 40 Kan. 689, 20 P. 493. 7. After assignment of note, original mortgagee cannot release mortgage. Insurance Co. v. Huntington, 57 Kan. 744, 748, 48 P. 19. 8. Release by executor not accompanied by a certificate of appointment insufficient. Bullock v. Kendall, 80 Kan. 791, 104 P. 568.

K.S.A. 58-2308 Discharge or assignment of mortgage to be recorded at length.

58-2308. Discharge or assignment of mortgage to be recorded at length. Every such instrument, and the proof or acknowledgment thereof, shall be recorded at full length by the register of deeds, and a reference shall be made to the book and page containing such record or to the microphotograph number in the general or numerical indexes under the notation that such mortgage has been assigned or satisfied. G.S. 1868, ch. 68, § 7; R.S. 1923, 67-308; L. 1971, ch. 86, § 3; L. 1977, ch. 191, § 2; July 1. Attorney General's Opinions: Mortgage registration and intangibles; mortgage registration; instruments subject thereto. 87-162. CASE ANNOTATIONS 1. Recorded mortgage has priority over unrecorded purchase-money mortgage. Jackson v. Reid, 30 Kan. 10, 1 P. 308. 2. Mortgage and assignment should be recorded. Perkins v. Matteson, 40 Kan. 165, 19 P. 633. 3. Mortgagee's assignment of notes and mortgages as security for borrowing, relative priority of interests under UCC examined. Army Nat'l Bank v. Equity Developers, Inc., 245 Kan. 3, 16, 774 P.2d 919 (1989). 4. The effect failure to record assignment of mortgage had on rights of the assignee in relation to junior mortgagees discussed. Bank Western v. Henderson, 255 Kan. 343, 347, 874 P.2d 632 (1994). 5. Bona fide purchaser could not avoid creditor's assigned interest in mortgage because creditor allegedly failed to record assignment. In re Patton, 314 B.R. 826, 832 (2004).

K.S.A. 58-2309a Entry of satisfaction of mortgage; duties and liability of mortgagee or assignee of mortgage; entry of satisfaction of mortgage by lender or closing agent, when.

58-2309a. Entry of satisfaction of mortgage; duties and liability of mortgagee or assignee of mortgage; entry of satisfaction of mortgage by lender or closing agent, when. (a) When the indebtedness secured by a recorded mortgage is paid and there is no agreement for the making of future advances to be secured by the mortgage, the mortgagee or the mortgagee's assignee shall enter satisfaction or cause satisfaction of such mortgage to be entered of record forthwith, paying the required fee. The fee may be collected from the mortgagor pursuant to K.S.A. 16-207 , and amendments thereto, except that the failure of the mortgagor to pay such fee shall not relieve the mortgagee or the mortgagee's assignee from entering satisfaction of such mortgage in compliance with the provisions of this section. In the event the mortgagee or the mortgagee's assignee fails to enter satisfaction or cause satisfaction of such mortgage to be entered within 20 days after written demand by certified or registered mail, the lender or a designated closing agent acting as a closing agent in the sale, financing or refinancing of the real estate subject to such mortgage, who upon reliance of written payoff information provided by the mortgagee, and which payoff information shall be deemed as the correct and full amount due and owing under such mortgage, has caused the indebtedness to be paid in full may cause satisfaction of the mortgage to be entered. If in fact the mortgagee or mortgagee's assignee was not paid in accordance with the aforesaid payoff information when the mortgage was released the lender or the closing agent in the sale, financing or refinancing of the real estate subject to such mortgage who signed the false release shall be liable in damages to the mortgagee or mortgagee's assignee for the entire indebtedness together with interest thereon, attorney fees, and any additional damages that the mortgagee or mortgagee's assignee has incurred. Upon recording of such satisfaction by the lender or closing agent in the sale, financing or refinancing of the real estate subject to such mortgage, who has caused the indebtedness to be paid in full, such mortgage shall be deemed fully released as if discharged by the mortgagee or mortgagee's assignee. (b) When a mortgage is recorded covering real estate in which the mortgagor has no interest, the mortgagee or the mortgagee's assignee shall enter satisfaction or cause satisfaction of such mortgage to be entered of record, paying the required fee without charge to the mortgagor or the mortgagor's assigns. (c) The following persons may make demand upon a mortgagee or assignee of a mortgagee for the entering of satisfaction of the mortgage, as provided for in subsections (a) and (b): (1) A mortgagor, a mortgagor's heirs or assigns or anyone acting for such mortgagor, heirs or assigns; (2) an owner of real estate upon which a mortgage has been recorded by someone having no interest in the real estate; or (3) a lender or designated closing agent acting as a closing agent in the sale, financing or refinancing of the real estate subject to such mortgage. (d) Any mortgagee or assignee of a mortgagee who refuses or neglects to enter satisfaction of such mortgage within 20 days after demand has been made as provided in subsection (c) shall be liable in damages to the person for whom the demand was made in the sum of $500, together with a reasonable attorney's fee for preparing and prosecuting the action. The plaintiff in such action may recover any additional damages that the evidence in the case warrants. Civil actions may be brought under this act before any court of competent jurisdiction, and attachments may be had as in other cases. (e) The mortgagee or assignee of a mortgagee entering satisfaction or causing to be entered satisfaction of a mortgage under the provisions of subsection (a) shall furnish to the office of the register of deeds the full name and last known post office address of the mortgagor or the mortgagor's assignee. The register of deeds shall forward such information to the county clerk who shall make any necessary changes in address records for mailing tax statements. L. 1971, ch. 189, § 1; L. 1980, ch. 163, § 1; L. 1989, ch. 165, § 1; L. 1994, ch. 250, § 1; L. 1995, ch. 173, § 2; L. 2001, ch. 28, § 1; L. 2005, ch. 52, § 1; July 1. Law Review and Bar Journal References: "Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 544, 546, 547 (1979). "2001 Legislative Wrap-Up," Paul T. Davis, 70 J.K.B.A. No. 7, 14 (2001). Attorney General's Opinions: Entry of satisfaction of real estate mortgage; fee. 94-143. CASE ANNOTATIONS 1. Applied; title insurance companies held liable for punitive damages for failure to exercise care in disbursing purchaser's funds. Ford v. Guarantee Abstract & Title Co., 222 Kan. 244, 264, 553 P.2d 254. 2. Whether absent specific contractual provision authorizing prepayment debtor has a right to prepay note and mortgage examined. Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 660, 667, 876 P.2d 1362 (1994). 3. Cited; Kansas law requires that mortgage holder promptly release a mortgage when debt has been repaid. Landmark National Bank v. Kesler, 40 Kan. App. 2d 325, 331, 192 P.3d 177 (2008).

K.S.A. 58-2310 Application to mortgages already paid.

58-2310. Application to mortgages already paid. K.S.A. 58-2309 shall be construed so as to apply to mortgages heretofore paid, but not discharged of record: Provided, That if the residence of the holder of such mortgage can be ascertained, no action shall be brought until demand is made in accordance with said section; but such demand need not be in writing, and will be excused if the residence of the holder of such mortgage cannot, with due diligence, be ascertained. L. 1889, ch. 175, § 2; March 6; R.S. 1923, 67-310.

K.S.A. 58-2311 Joinder of actions.

58-2311. Joinder of actions. In any action commenced in the district court to recover damages under the provisions of this act, the plaintiff may unite with such claim a cause of action to cancel the mortgage and remove the cloud from the title; and if plaintiff recovers damages in such action, he or she shall be entitled to a further judgment canceling such mortgage and quieting the title to the mortgaged premises; and where personal service of summons cannot be had on the defendant or defendants within this state, judgment canceling such mortgage may be rendered in the action upon proof of due service by publication, or upon due personal service obtained out of this state. L. 1889, ch. 175, § 3; March 6; R.S. 1923, 67-311.

K.S.A. 58-2312 Stipulation for attorney fees void.

58-2312. Stipulation for attorney fees void. Except as otherwise provided by law, any note, mortgage or other credit agreement may provide for the payment of reasonable costs of collection, including, but not limited to, court costs, attorney fees and collection agency fees, except that such costs of collection: (1) May not include costs that were incurred by a salaried employee of the creditor or its assignee; and (2) may not include the recovery of both attorney fees and collection agency fees. L. 1876, ch. 77, § 1; R.S. 1923, 67-312; L. 1994, ch. 276, § 3; July 1. Cross References to Related Sections: Contracts and promises, see chapter 16. Law Review and Bar Journal References: Secured transactions under UCC, J. Eugene Balloun, 5 W.L.J. 192, 215 (1966). Impact of the Uniform Consumer Credit Code upon Kansas, Barkley Clark, 18 K.L.R. 277, 291 (1970). Prohibition against provision allowing creditor to collect attorney fees on promissory note, does not change law hereunder, Barkley Clark, 42 J.B.A.K. 147, 199 (1973). "Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 538, 543, 544, 545 (1979). "The U.C.C.C. and Real Estate Financing: A Square Peg in a Round Hole," Thomas L. Griswold, 28 K.L.R. 601, 614 (1980). "Unauthorized Corporate Law Practices in Small Claims Court: Should Anybody Care?" Ron Smith, 33 W.L.J. 345, 360 (1994). "New Legislation Affects the Collection of Unpaid Debts," Wayne T. Stratton, 95 Kan. Med. No. 9, 182 (1994). "Will Debtors Win the Battle as Creditors Win the War?: Retroactive Recovery of Attorney Fees in Consumer Credit Contracts in Kansas," Tamara Putnam and Jonathan Lautt, 34 W.L.J. 556, 559, 561, 564 (1995). "Recovery of Attorney's Fees in Kansas," Jerry D. Fairbanks, 77 J.K.B.A. No. 4, 20 (2008). CASE ANNOTATIONS 1. Provisions in bond which violate this section cannot be enforced. Singer Co. v. Armstrong, 7 Kan. App. 314, 54 P. 571. 2. Stipulation for 10 percent attorney's fees void; not interest. Leach v. Urschel, 112 Kan. 629, 633, 212 P. 111. 3. Right to recover fee charged and collected in foreclosure action considered. Wingrove v. Peoples Nat'l Bank, 127 Kan. 722, 275 P. 150. 4. Stipulation for attorney fees made and payable in Indiana not enforceable. Young v. Nave, 135 Kan. 23, 10 P.2d 23. 5. Usurious interest and provision for attorney fee as affecting recovery. Marksheffel-Sill Motors v. Popejoy, 135 Kan. 624, 626, 11 P.2d 693. 6. Compensation to trustee under trust deed not allowable. Hall v. Goldsworthy, 136 Kan. 247, 253, 14 P.2d 659. 7. Cited but not construed. Hamilton v. Talbot, 140 Kan. 20, 34 P.2d 553. Rehearing denied: 140 Kan. 282, 283, 36 P.2d 529. 8. Cited, compared in holding automobile guest statute inapplicable to foreign action. Pool v. Day, 141 Kan. 195, 197, 40 P.2d 396. 9. Provision in note for attorney fees secured by mortgage on Kansas property held void. Rubenstein v. Nourse, 70 F.2d 482. 10. Under indemnification contract, principal's promise to pay surety is a "promissory note." In Re Woerner, 19 B.R. 708, 709, 710, 712 (1982). 11. Contract for payment of attorney's fees contained in guaranty agreement for note prohibited by statute. Iola State Bank v. Biggs, 233 Kan. 450, 459, 463, 662 P.2d 563 (1983). 12. Whether 1994 amendment to section was remedial requiring application even though lease executed prior to amendment's effective date examined. Benedictine College, Inc. v. Century Office Products, 868 F. Supp. 1239, 1241 (1994). 13. Statutory allowance for attorney fees is substantive and must be applied prospectively. Ryco Packaging Corp. v. Chapelle Int'l., Ltd., 23 Kan. App. 2d 30, 34, 926 P.2d 669 (1996). 14. Provision allowing notes and credit agreements to provide for reasonable attorney fees may not be applied retroactively. Baxter State Bank v. Bernhardt, 985 F. Supp. 1259, 1270 (1997). 15. Costs of collection on mortgage note include recovery of attorney fees. Moritz Implement Co. v. Matthews, 265 Kan. 179, 190, 959 P.2d 886 (1998). 16. Pre-1994 version of statute did not nullify attorney fee provisions in pre-1994 indemnity agreement. Hartford Fire Ins. Co. v. P & H Cattle Co., 451 F. Supp. 2d 1262, 1282 (2006). 17. Statute prohibiting attorney fees in debt instruments amended to allow parties to contract for attorney fees. Santa Rosa KM Assocs. v. Principal Life Ins. Co., 41 Kan. App. 2d 840, 206 P.3d 40 (2009).

K.S.A. 58-2314 Unenforced foreclosure judgment; entry as cancellation and release of mortgage.

58-2314. Unenforced foreclosure judgment; entry as cancellation and release of mortgage. (a) Whenever real estate mortgages have been, or shall be, foreclosed by judgment of the district court in any county in the state of Kansas, and no renewal affidavit shall have been filed or no execution or orders of sale shall have been issued thereon within five years and no proceedings have been instituted in accordance with the provisions of K.S.A. 60-2404 and amendments thereto to revive the judgment and no appeal has been taken for a period of seven years from the date of the entry of the judgment of foreclosure, then it shall be the duty of the clerk of the court, on application of any party in interest, to record in the office of the register of deeds in which the mortgage is recorded, an instrument giving the date of the entry of the judgment of foreclosure with the page of the journal or the microphotograph number in which the judgment is recorded, together with the statement that no renewal affidavit was filed, nor execution or order of sale issued within five years, nor any proceedings to revive the judgment were instituted within seven years from the date of the entry of the judgment. The recorded instrument shall operate as a cancellation and release of the mortgage. (b) A "renewal affidavit" is a statement under oath, signed by the judgment creditor or the judgment creditor's attorney, filed in the proceedings in which the judgment was entered and stating the remaining balance due and unpaid on the judgment. The five-year period specified in this section shall not run during any period in which the enforcement of the judgment by legal process is stayed or prohibited. L. 1913, ch. 230, § 1; R.S. 1923, 67-314; L. 1971, ch. 86, § 5; L. 1974, ch. 233, § 1; L. 1976, ch. 196, § 2; L. 1977, ch. 191, § 3; L. 1990, ch. 207, § 1; July 1. CASE ANNOTATIONS 1. Mortgage released of record when no execution or order of sale issued or revivor had in six years. First Federal Savings & Loan Assn. v. Liebert, 195 Kan. 100, 403 P.2d 183. 2. Foreclosure judgment has not lapsed where no recorded instrument operating as cancellation and release of mortgage was filed. In re Ruck, 451 B.R. 128 (Bankr. D. Kan. 2011).

K.S.A. 58-2315 Removal of buildings unlawful, when.

58-2315. Removal of buildings unlawful, when. It shall be unlawful for any person to remove any building, outhouse or shed off from any real property upon which there is an unsatisfied mortgage properly recorded in the office of the register of deeds in the county where such real property is situate, without first obtaining from the mortgagee, his or her agent or assign, written permission for such removal. L. 1889, ch. 177, § 1; March 6; R.S. 1923, 67-315. CASE ANNOTATIONS 1. Information must allege that buildings removed without permission from mortgagee. The State v. Decker, 52 Kan. 193, 34 P. 780. 2. Foreclosure of tax lien; title holder not liable for deficiency. Ness County v. Light & Ice Co., 110 Kan. 501, 503, 204 P. 536.

K.S.A. 58-2316 Effect of removal; sale of buildings.

58-2316. Effect of removal; sale of buildings. The removal of any building, outhouse or shed from any real property upon which there is an unsatisfied mortgage properly recorded, as mentioned in the first section of this act, shall not destroy the lien of such mortgage upon such removed property, and it shall be the duty of the court in any action brought to foreclose any mortgage, where it is shown that the property from which said building, outhouse or shed has been removed is insufficient to satisfy such mortgage, to decree the sale of said building, outhouse or shed, wherever the same may be located, in satisfaction of such mortgage: Provided, That the land from which said building, outhouse or shed was removed shall first be sold. L. 1889, ch. 177, § 2; March 6; R.S. 1923, 67-316.

K.S.A. 58-2317 Criminal penalty for violation of K.S.A. 58-2315.

58-2317. Criminal penalty for violation of K.S.A. 58-2315. Any person convicted of a violation of K.S.A. 58-2315 shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than two months nor more than six months. L. 1889, ch. 177, § 3; March 6; R.S. 1923, 67-317.

K.S.A. 58-2318 Execution of assignments and releases of mortgages by corporations.

58-2318. Execution of assignments and releases of mortgages by corporations. All assignments and releases of mortgages by a corporation shall be valid when executed by the president, vice-president, secretary, cashier, treasurer or any other officer of such corporation so authorized by corporate resolution. Any assignment or release of a mortgage by a corporation which was executed on or after March 8, 1974, and prior to the effective date of this act, by one of the corporate officers designated herein, with or without attestation by the corporate seal, is hereby declared to be a legal and valid act of such corporation. L. 1911, ch. 225, § 1; R.S. 1923, 67-318; L. 1974, ch. 234, § 1; L. 1975, ch. 293, § 1; L. 1994, ch. 250, § 2; July 1. Attorney General's Opinions: Mortgage registration and intangibles; mortgage registration; instruments subject thereto. 87-162. Mortgage registration fee; exemptions; refinancing mortgage assigned to parent corporation. 93-156. CASE ANNOTATIONS 1. Improper release of mortgage held valid in form under statute. Trees v. Johnson, 130 Kan. 681, 683, 288 P. 587. 2. Cited in holding mortgage bond did not constitute assignment of mortgage. Shawnee County Comm'rs v. Cook, 141 Kan. 677, 681, 42 P.2d 568.

K.S.A. 58-2319 Assignments, acknowledgment of; name and address of assignee.

58-2319. Assignments, acknowledgment of; name and address of assignee. All assignments of real estate mortgages hereafter made shall be acknowledged by the assignor in the manner provided for the acknowledgment of other instruments affecting the title to real estate, and all such assignments shall clearly set forth the full name of the assignee, together with the assignee's post-office address. L. 1899, ch. 168, § 1; March 15; R.S. 1923, 67-319. Source or prior law: L. 1897, ch. 160, § 1. CASE ANNOTATIONS 1. Act of 1897 held not to impair obligation of contracts. Myers v. Wheelock, 60 Kan. 747, 57 P. 956. 2. Effect, under act of 1897, of failure to record assignment. Burt v. Moore, 62 Kan. 536, 64 P. 57. 3. Payor charged with notice of assignment duly recorded. Detwilder v. Heckenlaible, 63 Kan. 627, 631, 66 P. 653. 4. Recording assignment; review of foreclosure proceeding; effect of repealing statute; no vested right in a rule of evidence. Wheelock v. Myers, 64 Kan. 47, 51, 67 P. 632. 5. Act no restriction upon transfer of negotiable note and mortgage. Anthony v. Brennan, 74 Kan. 707, 709, 87 P. 1136. 6. This act held valid. Bank v. Pearce, 76 Kan. 408, 92 P. 53. 7. Assignment given but not recorded; effect of release by mortgagee. Mayse v. Williams, 77 Kan. 813, 91 P. 795. 8. Assignment not recorded; second mortgage executed; priority of liens. Middlekauff v. Bell, 111 Kan. 206, 213, 207 P. 184. 9. Act relates only to assignment of mortgages. Ball v. Oil & Gas Co., 113 Kan. 763, 216 P. 422. 10. Cited in holding mortgage bond did not constitute assignment of mortgage. Shawnee County Comm'rs v. Cook, 141 Kan. 677, 681, 42 P.2d 568.

K.S.A. 58-2320 Assignments, cost of acknowledgment and recording.

58-2320. Assignments, cost of acknowledgment and recording. The acknowledgment and recording of the assignments of real estate mortgages herein provided for in no event shall be chargeable to the mortgagor, his or her heirs, representatives, or assigns. L. 1899, ch. 168, § 2; March 15; R.S. 1923, 67-320. Source or prior law: L. 1897, ch. 160, § 3.

K.S.A. 58-2321 Assignments not recorded; whom mortgagor may pay.

58-2321. Assignments not recorded; whom mortgagor may pay. In cases where assignments of real estate mortgages are made after the passage of this act, if such assignments are not recorded, the mortgagor, his or her heirs, personal representatives, or assigns, may pay all matured interest or the principal debt itself prior to the recording of such assignment to the mortgagee, or if an assignment of such mortgage has been made that duly appears of record, then such payment may be made to the last assignee whose assignment is recorded in accordance with the provisions of this act, and such payment shall be effectual to extinguish all claims against such mortgagor, his or her heirs, personal representatives, and assigns, for or on account of such interest or such principal indebtedness; and no transfer of any note, bond or other evidence of indebtedness, by endorsement or otherwise, where such indebtedness is secured by mortgage on real estate within this state, shall prevent or operate to defeat the defense of payment of such interest or principal by the mortgagor, his or her heirs, personal representatives, or assigns, where such payment has been made to the mortgagee or to the assignee whose assignment appears last of record under the provisions of this act: Provided, however, That in all such cases the assignee who may hold such unrecorded assignment shall have a right of action against his or her assignor to recover the amount of any such payment of interest or principal made to such assignor as upon an account for money had and received for the use of such assignee. L. 1899, ch. 168, § 3; March 15; R.S. 1923, 67-321. Source or prior law: L. 1897, ch. 160, §§ 5, 7. Cross References to Related Sections: Recording not notice to mortgagor, see 58-2304. Discharge of recorded mortgage, see 58-2306. Law Review and Bar Journal References: Mortgage "payment" statutes in Kansas and New Mexico, Verle R. Seed, 3 K.L.R. 87, 89 (1954). Case in annotation No. 10 below discussed in 1959-61 survey of real property and future interests, James K. Logan and N. William Hines, Jr., 10 K.L.R. 277, 294 (1961). Attorney General's Opinions: Mortgage registration and intangibles; mortgage registration; instruments subject thereto. 87-162. CASE ANNOTATIONS 1. Insurance; proof of loss waived; inures to mortgagee's benefit, when. Insurance Co. v. Ketcham, 9 Kan. App. 552, 554, 58 P. 229. 2. Mortgage assigned; effect of failure to record assignment. Burt v. Moore, 62 Kan. 536, 540, 64 P. 57. 3. Unrecorded assignment; part payment of mortgagee; statute of limitations tolled; payments to record owner of mortgage binding on real owner. Trust Co. v. Owen, 83 Kan. 692, 696, 112 P. 619. 4. Proper party to enter satisfaction of record; debt due in default of payments at holder's option. Bank v. Grisham, 105 Kan. 460, 472, 185 P. 54. 5. Assignment not recorded; second mortgage executed; priority of liens. Middlekauff v. Bell, 111 Kan. 206, 213, 207 P. 184. 6. Unrecorded assignment of mortgage; effect of payment to original mortgagee. Allen v. Waddle, 111 Kan. 690, 691, 692, 208 P. 551. 7. Gratuitous agency to remit interest on mortgage; substantially discharged; effect. Nelson v. Bank, 112 Kan. 374, 376, 211 P. 107. 8. Payment to mortgagee where assignment not recorded extinguishes debt. White v. Kemberling, 114 Kan. 112, 114, 216 P. 1087; Honer v. State Bank, 114 Kan. 123, 125, 216 P. 822; Jacobs v. Hester, 119 Kan. 661, 665, 240 P. 952; Doty v. Campbell, 127 Kan. 744, 746, 275 P. 148. 9. Mortgagor charged with constructive notice where assignment recorded. Walmer v. Redinger, 116 Kan. 580, 582, 227 P. 329. 10. Mortgage assigned; payment to mortgagee's husband before assignment recorded constituted payment. Pletcher v. Albrecht, 186 Kan. 273, 277, 278, 279, 280, 281, 350 P.2d 58. 11. The effect failure to record assignment of mortgage had on rights of the assignee in relation to junior mortgagees discussed. Bank Western v. Henderson, 255 Kan. 343, 348, 874 P.2d 632 (1994). 12. Bona fide purchaser could not avoid creditor's assigned interest in mortgage because creditor allegedly failed to record assignment. In re Patton, 314 B.R. 826, 832 (2004).

K.S.A. 58-2322 Assignments prior to 1899.

58-2322. Assignments prior to 1899. All assignments of mortgages at present existing, bearing date prior to the taking effect of this act, shall within four months next succeeding the taking effect of this act be recorded in the proper county of this state, in accordance with the provisions of K.S.A. 58-2319 , whether such assignments be acknowledged or not; and in case such assignments are not recorded within the time herein provided, the payment of any interest or principal on the debts secured by such mortgages to the mortgagees or the assignees whose assignments appear last of record after the expiration of the time herein provided, and before the recording of such assignments, shall be and constitute a complete defense to any action on such mortgage or note or other evidence of indebtedness secured thereby as against the mortgagor, his or her heirs, personal representatives, or assigns: Provided, however, That the last assignee of an unrecorded assignment shall have a right of action against the assignor to whom such interest or principal is paid: And provided further, That where the mortgagor, his or her heirs, personal representatives or assigns have actual notice or knowledge of such assignment or transfer, then in such case such payment shall constitute no defense, and none of the provisions of this act shall apply. L. 1899, ch. 168, § 4; March 15; R.S. 1923, 67-322. Source or prior law: L. 1897, ch. 160, § 6. Law Review and Bar Journal References: Mortgage "payment" statutes in Kansas and New Mexico, Verle R. Seed, 3 K.L.R. 87, 89 (1954). CASE ANNOTATIONS 1. Payment to record owner entitles payor to credit for amount. Mayse v. Williams, 77 Kan. 813, 91 P. 795; Bullock v. Kendall, 80 Kan. 791, 104 P. 568. 2. Part payment to record owner tolls statute of limitations. Trust Co. v. Owen, 83 Kan. 692, 696, 112 P. 619. 3. Section applies only to assignments prior to 1899. Doty v. Campbell, 127 Kan. 744, 747, 275 P. 148.

K.S.A. 58-2323 Assignment carries debt secured.

58-2323. Assignment carries debt secured. The assignment of any mortgage as herein provided shall carry with it the debt thereby secured. L. 1899, ch. 168, § 5; March 15; R.S. 1923, 67-323. Source or prior law: L. 1897, ch. 160, § 7. Attorney General's Opinions: Mortgage registration fee; exemptions; refinancing mortgage assigned to parent corporation. 93-156. Nonexempt lender who records mortgage assigned by exempt lender is not required to pay mortgage registration fee. 2009-6. CASE ANNOTATIONS 1. Whether mortgagee was required to take legal action to secure rents from mortgaged property before filing bankruptcy examined. In re Kansas Office Associates, Ltd., 173 B.R. 745, 750 (1994). 2. Cited; assignment of any mortgage carries with it the debt thereby secured. Landmark National Bank v. Kesler, 40 Kan. App. 2d 325, 327, 192 P.3d 177 (2008). 3. By statute, assignment of the mortgage carries with it the assignment of the debt. Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009).

K.S.A. 58-2324 Legalizing defective assignments.

58-2324. Legalizing defective assignments. Laws 1899, chapter 155, sections 1-4, included by reference. [Legalized assignments of mortgages written on the original mortgage, made prior to March 12, 1897; made provision for recording same; validated such assignment heretofore recorded and excluded from the application of the act cases pending with relation to such instruments at the time of passage of such act.] R.S. 1923, 67-324.

K.S.A. 58-2325 Validating defective releases and assignments.

58-2325. Validating defective releases and assignments. Laws 1915, chapter 252, included by reference. [Act applied to defective releases and assignments recorded at least five years before the taking effect of the act; provided that if an action be not commenced within one year from the taking effect of the act, mortgagee, assignee or holder of such mortgage should be forever barred from bringing action to set aside such instrument.] R.S. 1923, 67-325. Source or prior law: L. 1905, ch. 301, §§ 1, 2.

K.S.A. 58-2326 Validating defective mortgage foreclosure proceedings.

58-2326. Validating defective mortgage foreclosure proceedings. In any case where a mortgage upon real estate in Kansas has been foreclosed in a court of competent jurisdiction, said foreclosure proceedings shall be deemed to be valid and the lien of the mortgage foreclosed shall be deemed to be canceled notwithstanding the foreclosure proceedings may have been brought by or in the name of some person other than the original mortgagee and without an assignment from such mortgagee being of record or shown in the foreclosure proceedings: Provided, That this act shall not apply or be construed to validate any mortgage foreclosure proceeding which was not completed at least ten (10) years prior to the taking effect of this act: And provided further, That this act shall not apply to any mortgage or the foreclosure thereof unless the debt secured by such mortgage has been due and payable for at least ten (10) years prior to the taking effect of this act. L. 1931, ch. 242, § 1; May 28.

K.S.A. 58-2327 Action to set aside defective foreclosure or to foreclose such mortgage; time limit.

58-2327. Action to set aside defective foreclosure or to foreclose such mortgage; time limit. The holder of any mortgage as original mortgagee or assignee thereof, or the administrator or executor of any deceased mortgagee or assignee of any mortgage which has been foreclosed in the manner set forth in K.S.A. 58-2326 whose title or claim to such mortgage is adverse to the party having foreclosed the same, shall have six (6) months from the taking effect of this act in which to commence an action in a court of competent jurisdiction to set aside such foreclosure proceedings or to foreclose said mortgage, and if such action to set aside said foreclosure proceedings or to foreclose said mortgage shall not be commenced within said period of six (6) months from the taking effect of this act the said holder of said mortgage as original mortgagee or assignee thereof shall forever be barred from bringing any action to set aside said foreclosure proceedings or to foreclose said mortgage. L. 1931, ch. 242, § 2; May 28.

K.S.A. 58-2328 Waiver and disclaimer by state of certain interests under defective foreclosure proceedings prior to January 1, 1910.

58-2328. Waiver and disclaimer by state of certain interests under defective foreclosure proceedings prior to January 1, 1910. In any case where a mortgage upon real estate in Kansas has been foreclosed in a court of competent jurisdiction and a judgment of foreclosure rendered therein and thereon and after sheriff's sale had thereon, a sheriff's deed was issued, prior to January 1, 1910, and where the mortgagor of said property died intestate prior to said foreclosure leaving no known heirs at law, and where the state of Kansas was not made a party to said foreclosure proceeding, the state of Kansas hereby disclaims any interest in and waives all of its rights to said real property accruing to the state of Kansas by virtue of the law of escheat, or otherwise. L. 1938, ch. 47, § 1; February 26.

K.S.A. 58-2329 Validating certain defective releases and assignments.

58-2329. Validating certain defective releases and assignments. Any and all mortgage releases and assignments of mortgages which have been recorded in the office of the register of deeds, in any county of the state of Kansas, purporting to cancel and discharge or assign any mortgage, and purporting to be executed by any mortgagee, or his or her agent or attorney, or by any assignee of said mortgagee, or his or her agent or attorney, or by any executor or administrator of any deceased mortgagee or deceased assignee, or purporting to be executed by the heirs or legatees of any deceased mortgagee or deceased assignee, or by any person acting for a corporation, who is either mortgagee or assignee of said mortgage, shall be deemed to be valid, and the lien of such mortgage shall be deemed to be canceled, and released notwithstanding any defects in the execution, acknowledgment, certificate of acknowledgment, recording or certificate of recording of the same: Provided, That this act shall not apply to any release or assignment which has not been recorded in the office of the register of deeds, in the county where the land is situated, at least five (5) years prior to July 1, 1957: Provided further, That this act shall not apply to any mortgage unless the debt secured by such mortgage has been due and payable for at least five (5) years prior to July 1, 1957: Provided, That this amendment shall not revive any rights or actions previously barred. L. 1941, ch. 283, § 1; L. 1957, ch. 352, § 1; July 1. Source or prior law: 58-2325.

K.S.A. 58-2330 Limitation of actions to set aside.

58-2330. Limitation of actions to set aside. Any holder of any mortgage or the assignee or the administrator or executor of any deceased mortgagee or deceased assignee, or the heirs or legatees of any deceased mortgagee or deceased assignee of any mortgage which is defectively released or assigned, and which has remained unchallenged on the records for a period of more than five (5) years prior to the taking effect of this act, and more than five (5) years have elapsed since the time the indebtedness secured by such mortgage became due and payable shall have one (1) year from July 1, 1957, in which to commence an action in the district court of the county where the land is situated, to set aside such assignment or release, and, if such action by any mortgagee or assignee or the administrator or executor of any deceased mortgagee or deceased assignee, or the heirs or legatees of any deceased mortgagee or deceased assignee, shall not be commenced within one (1) year from July 1, 1957, then such mortgagee or assignee thereof, or any holder of said mortgage shall forever be barred from bringing any action in any court of the state of Kansas, to set aside such assignment or release: Provided, That this amendment shall not revive any rights or actions previously barred. L. 1941, ch. 283, § 2; L. 1957, ch. 352, § 2; July 1. Source or prior law: 58-2325.

K.S.A. 58-2332 Mortgages or deeds of trust recorded prior to 1914 or referred to or described declared void; exceptions.

58-2332. Mortgages or deeds of trust recorded prior to 1914 or referred to or described declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record before January 1, 1914, or referred to or described in any instrument of record prior to said date, shall, from and after July 1, 1948, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein: Provided, That this act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property of railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured: Provided further, That infancy, incompetency or nonresidence shall not affect the operation of this act. L. 1947, ch. 336, § 1; June 30. Source or prior law: 58-2331. Law Review and Bar Journal References: "Kansas Marketable Record Title Act—Inherent Defects in the Root of Title," William R. Scott, 45 J.B.A.K. 11, 15 (1976).

K.S.A. 58-2333 Mortgages or deeds of trust recorded or referred to or described of record prior to 1919 declared void; exceptions.

58-2333. Mortgages or deeds of trust recorded or referred to or described of record prior to 1919 declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record before January 1, 1919, or referred to or described in any instrument of record prior to said date, shall, from and after July 1, 1952, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein: Provided, That this act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property of railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured: Provided further, That infancy, incompetency or nonresidence shall not affect the operation of this act. L. 1951, ch. 373, § 1; June 30. Law Review and Bar Journal References: Survey of Kansas law on real and personal property (1965-1969), 18 K.L.R. 427, 428 (1970). "Kansas Marketable Record Title Act—Inherent Defects in the Root of Title," William R. Scott, 45 J.B.A.K. 11, 15 (1976).

K.S.A. 58-2333a Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1919, and January 1, 1923, declared void; exceptions.

58-2333a. Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1919, and January 1, 1923, declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record on or after January 1, 1919, and before January 1, 1923, or referred to or described in any instrument of record within the prescribed period, shall, from and after July 1, 1956, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein: Provided, That this act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property of railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured: Provided further, That infancy, incompetency or nonresidence shall not affect the operation of this act. L. 1955, ch. 300, § 1; June 30.

K.S.A. 58-2333b Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1919, and January 1, 1927, declared void; exceptions.

58-2333b. Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1919, and January 1, 1927, declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record on or after January 1, 1919, and before January 1, 1927, or referred to or described in any instrument of record within the prescribed period, shall, from and after July 1, 1962, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein: Provided, That this act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property or railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured: Provided further, That infancy, incompetency or nonresidence shall not affect the operation of this act. L. 1961, ch. 296, § 1; June 30.

K.S.A. 58-2333c Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1927, and January 1, 1935, declared void; exceptions.

58-2333c. Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1927, and January 1, 1935, declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record on or after January 1, 1927, and before January 1, 1935, or referred to or described in any instrument of record within the prescribed period, shall, from and after July 1, 1968, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein: Provided, That this act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property of railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured: Provided further, That infancy, incompetency or nonresidence shall not affect the operation of this act. L. 1967, ch. 304, § 1; July 1.

K.S.A. 58-2333d Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1935, and January 1, 1939, declared void; exceptions.

58-2333d. Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1935, and January 1, 1939, declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record on or after January 1, 1935, and before January 1, 1939, or referred to or described in any instrument of record within the prescribed period, shall, from and after July 1, 1972, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein: Provided, That this act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property of railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured: Provided further, That infancy, incompetency or nonresidence shall not affect the operation of this act. L. 1971, ch. 191, § 1; July 1.

K.S.A. 58-2333e Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1939, and January 1, 1943, declared void; exceptions.

58-2333e. Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1939, and January 1, 1943, declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record on or after January 1, 1939, and before January 1, 1943, or referred to or described in any instrument of record within the prescribed period shall, from and after July 1, 1976, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein: Provided, That this act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property of railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured: Provided further, That infancy, incompetency or nonresidence shall not affect the operation of this act. L. 1975, ch. 346, § 1; July 1.

K.S.A. 58-2333f Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1943, and January 1, 1947, declared void; exceptions.

58-2333f. Mortgages or deeds of trust recorded or referred to or described of record between January 1, 1943, and January 1, 1947, declared void; exceptions. Every mortgage or deed of trust securing a debt on real property in this state which mortgage or deed of trust was placed of record on or after January 1, 1943, and before January 1, 1947, or referred to or described in any instrument of record within the prescribed period shall, from and after July 1, 1980, be void as against the creditors of the person making the same or against subsequent purchasers or mortgagees unless the owner and holder thereof shall, prior to such date, cause to be filed in the office of the register of deeds of the county in which the property is located, an affidavit setting forth the name and address of the owner and holder thereof, the nature of the claim, the amount due thereon, the date of the last payment thereon and a description of the property included therein. This act shall not apply to or affect (1) mortgages, deeds of trust, or liens upon property of railroad corporations recorded after January 1, 1890, or (2) the indebtedness thereby secured. Infancy, incompetency or nonresidency shall not affect the operation of this act. L. 1979, ch. 172, § 1; July 1.

K.S.A. 58-2333g Mortgages or deeds of trust recorded between January 1, 1947, and January 1, 1951, declared void; exceptions.

58-2333g. Mortgages or deeds of trust recorded between January 1, 1947, and January 1, 1951, declared void; exceptions. Any mortgage or deed of trust against real property located in this state recorded on or after January 1, 1947, and before January 1, 1951, or referred to or described in any instrument of record within such period shall be void, unless, prior to July 1, 1986, the owner and holder thereof files, in the office of the register of deeds of the county in which the property is located, an affidavit stating: (a) The name and address of the owner and holder thereof; (b) the nature of the claim; (c) the amount due on the claim; (d) the date of the last payment on the claim; and (e) a description of the property. This section shall not apply to or affect mortgages, deeds of trust or liens against real property of railroad corporations recorded after January 1, 1890. Infancy, incompetency or nonresidency shall not affect the operation of this act. L. 1984, ch. 249, § 1; L. 1985, ch. 185, § 1; July 1.

K.S.A. 58-2333h Mortgages or deeds of trust recorded between January 1, 1951, and January 1, 1955, declared void; exceptions.

58-2333h. Mortgages or deeds of trust recorded between January 1, 1951, and January 1, 1955, declared void; exceptions. Any mortgage or deed of trust against real property located in this state recorded on or after January 1, 1951, and before January 1, 1955, or referred to or described in any instrument of record within such period shall be void, unless, prior to July 1, 1988, the owner and holder thereof files, in the office of the register of deeds of the county in which the property is located, an affidavit stating: (a) The name and address of the owner and holder thereof; (b) the nature of the claim; (c) the amount due on the claim; (d) the date of the last payment on the claim; and (e) a description of the property. This section shall not apply to or affect mortgages, deeds of trust or liens against real property of railroad corporations recorded after January 1, 1890. Infancy, incompetency or nonresidency shall not affect the operation of this act. L. 1987, ch. 259, § 1; July 1.

K.S.A. 58-2333i Mortgages or deeds of trust recorded between January 1, 1955, and January 1, 1965, declared void; mortgages or deeds of trust recorded on or after January 1, 1965, declared void; exceptions.

58-2333i. Mortgages or deeds of trust recorded between January 1, 1955, and January 1, 1965, declared void; mortgages or deeds of trust recorded on or after January 1, 1965, declared void; exceptions. (a) Any mortgage or deed of trust against real property located in this state recorded on or after January 1, 1955, and before January 1, 1965, or referred to or described in any instrument of record within such period shall be void, unless, prior to July 1, 1998, the owner and holder thereof files, in the office of the register of deeds of the county in which the property is located, an affidavit stating: (1) The name and address of the owner and holder thereof; (2) the nature of the claim; (3) the amount due on the claim; (4) the date of the last payment on the claim; and (5) a description of the property. (b) Any mortgage or deed of trust against real property located in this state recorded on or after January 1, 1965, or referred to or described in any instrument of record after such date, shall be void by operation of law if: (1) More than 42 years shall have elapsed between the date of the initial recording of the mortgage; and (2) prior to July 1 of the year next preceding the date 42 years after the date of initial recording, an action is not commenced to foreclose the mortgage or deed of trust, or the owner and holder of the mortgage does not file in the office of the register of deeds of the county in which the property is located, an affidavit stating: (A) The name and address of the owner and holder thereof; (B) the nature of the claim; (C) the amount due on the claim; (D) the date of the last payment on the claim; and (E) a description of the property. (c) This section shall not apply to or affect mortgages, deeds of trust or liens against real property of railroad corporations recorded after January 1, 1890. (d) Infancy, incompetency or nonresidency shall not affect the operation of this act. L. 1997, ch. 14, § 1; L. 1997, ch. 176, § 8; L. 1998, ch. 25, § 1; July 1.

K.S.A. 58-2334 Foreclosure proceedings to enforce mortgages or deeds of trust of electric public utilities.

58-2334. Foreclosure proceedings to enforce mortgages or deeds of trust of electric public utilities. In cases where any electric public utility operating or owning property in this state shall have heretofore executed or shall hereafter execute a mortgage or deed of trust securing an issue or issues of bonds or other indebtedness, actions for foreclosure thereof may be brought in the name of the mortgagee or, in the case of deeds of trust, in the name of the trustee or trustees, and judgment rendered in favor of such mortgagee or trustee or trustees for the amount of indebtedness found owing for the benefit of the holders of such indebtedness. Such actions may be brought in the county in which the principal office of the utility in this state is located or in any county in which property covered by the mortgage is located. All of the properties and franchises covered by the mortgage and any other properties appurtenant thereto constituting a part of the utility system may be ordered sold and sale thereof had, whether as an entirety or in classified parcels as directed by the court, at a single sale in the county where the proceeding is pending, such sale to be conducted by the sheriff of said county as in the case of other mortgage foreclosure sales, or the court may in its discretion appoint a special commissioner to make and conduct such sale, execute conveyance to the purchaser and distribute the proceeds of the sale as ordered by the court, any such sale to be subject to confirmation by the court pursuant to report thereof made by such sheriff or special commissioner. The person or persons acquiring title under such sale by appropriate instrument of conveyance from the sheriff or special commissioner pursuant to order of confirmation of such sale, shall have and acquire thereby and may exercise and enjoy in accordance with their terms, all the rights, privileges, grants and franchises, municipal or otherwise, covered by such mortgage or deed of trust which belonged to and were enjoyed by the utility making such mortgage or deed of trust or its successors in interest, together with all permits or certificates of public convenience granted under K.S.A. 66-131 , so far as the same relate and appertain to the property mortgaged and sold, and if the execution of such mortgage or deed of trust and issuance of the securities or incurring of the indebtedness secured thereby shall have been authorized by the state corporation commission, no further authorization or consent from said state corporation commission shall be required for the assignment and conveyance of such properties, rights or franchises to such purchaser or purchasers. L. 1951, ch. 370, § 1; March 31.

K.S.A. 58-2335 Assumption of mortgage obligations by person not party to original mortgage; maximum fee for changing records of lending institutions.

58-2335. Assumption of mortgage obligations by person not party to original mortgage; maximum fee for changing records of lending institutions. Whenever the obligations of a mortgage are assumed and agreed to be paid by any one or more persons who were not parties to such original mortgage, no fee in excess of seventy-five dollars ($75) or as otherwise provided in the mortgage contract shall be charged by any savings and loan association, bank or other lending institution for the services connected with making appropriate changes in the books, papers and records of the savings and loan association, bank, or other lending institution. L. 1970, ch. 221, § 2; July 1. Law Review and Bar Journal References: "Alternate Methods of Financing the Sale and Purchase of Single Family Residences: Representing the Buyer and the Seller," Peter M. DiGiovanni, 50 J.K.B.A. 179, 181 (1981).

K.S.A. 58-2336 Liens of mortgages securing loans upon real estate; providing for the securing of future advances; priority of lien.

58-2336. Liens of mortgages securing loans upon real estate; providing for the securing of future advances; priority of lien. Every mortgage or other instrument securing a loan upon real estate and constituting a lien or the full equivalent thereof upon the real estate securing such loan, according to any lawful or well recognized practice, which is best suited to the transaction, may secure future advances and the lien of such mortgage shall attach upon its execution and have priority from time of recording as to all advances made thereunder until such mortgage is released of record: Provided, That the lien of such mortgage shall not exceed at any one time the maximum amount stated in the mortgage. L. 1971, ch. 190, § 1; July 1. Attorney General's Opinions: Assessment of mortgage registration tax on future advances clause. 86-79. CASE ANNOTATIONS 1. Optional or obligatory future advances under mortgage have priority over liens attaching after recording but before advances made. First Nat'l Bank in Wichita v. Fink, 241 Kan. 321, 325, 327, 736 P.2d 909 (1987). 2. Priority of advances over liens attaching after mortgage recordation but before advances stated; limitations on open-ended clauses noted. Halliburton Co. v. Board of Jackson County Comm'rs, 12 Kan. App. 2d 704, 709, 755 P.2d 1344 (1988). 3. Subsequent notes based on future advance clause secured only to maximum amount stated in mortgage. Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 710, 810 P.2d 1154 (1991).

K.S.A. 58-2337 Transfer of home loan servicing agent; definitions.

58-2337. Transfer of home loan servicing agent; definitions. As used in this act: (a) "Lender" means all state and national banks, trust companies, state and federally chartered savings and loan associations, federally chartered savings banks or state and federally chartered credit unions or any person making a home loan; (b) "selling lender" means a lender who sells, assigns or transfers the servicing of a loan to a purchasing lender or a servicing agent; (c) "purchasing lender" means a lender or servicing agent who buys the servicing of a loan from a selling lender; (d) "home" means a dwelling or dwellings for not more than four families. A property does not cease to be a home because of the incidental use of it for minor business purposes so long as the principal use of the property is for residence purposes; (e) "home loan" means a real estate loan when the security is home property; (f) "home property" means real estate on which there is located, or will be located pursuant to a home loan, a home or a combination home; (g) "real estate loan" means a loan on the security of real estate evidenced by any form of instrument whereby a lien is created upon such real estate for the benefit of another person as security for the payment of an obligation to such person or whereby title to real estate is conveyed to another person as trustee for a third person, as security for the payment of an obligation to such third person; (h) "person" means an individual, corporation, business trust, partnership or association or any other legal entity; (i) "escrow account" means escrow, agency or similar account for the payment of taxes or insurance premiums with respect to a home loan. L. 1988, ch. 57, § 1; July 1.

K.S.A. 58-2338 Notice to mortgagor by selling lender; response to mortgagor by purchasing lender.

58-2338. Notice to mortgagor by selling lender; response to mortgagor by purchasing lender. If the servicing of a home loan is sold or assigned to another person: (a) The selling lender shall notify the mortgagor of the sale no more than 10 business days after the actual date of transfer. The notification must include the name, address and telephone number of the person who will assume responsibility for servicing and accepting payments for the home loan and upon request of the mortgagor, the notification must also include a detailed written financial breakdown including, but not limited to, interest rate, monthly payment amount and current escrow balance; and (b) the purchasing lender shall respond within 15 business days to a written request for information from a mortgagor. A written response must include the telephone number of the company representative who can assist the mortgagor. L. 1988, ch. 57, § 2; July 1.

K.S.A. 58-2339 Annual summary of escrow account to be provided mortgagor by purchasing lender.

58-2339. Annual summary of escrow account to be provided mortgagor by purchasing lender. Each purchasing lender requiring an escrow account shall provide to the mortgagor an annual summary of all transactions of such escrow account on or before February 15. The summary shall include the amount of each transaction and the purpose for which the money was spent. L. 1988, ch. 57, § 3; July 1.

K.S.A. 58-2340 Liability of lenders upon failure to comply with act's requirements.

58-2340. Liability of lenders upon failure to comply with act's requirements. If the selling lender fails to comply with the requirements of K.S.A. 58-2338 , or the purchasing lender fails to comply with the requirements of K.S.A. 58-2339 , and such failure to comply was due to the lender's failure to exercise reasonable care, the lender is liable to the mortgagor for $100 per occurrence, in addition to actual damages caused by the failure to comply. L. 1988, ch. 57, § 4; July 1.

K.S.A. 58-2341 Selling lender not subject to K.S.A. 58-2339.

58-2341. Selling lender not subject to K.S.A. 58-2339. The selling lender is not subject to the provisions of K.S.A. 58-2339 . L. 1988, ch. 57, § 5; July 1.

K.S.A. 58-2342 Home equity protection; terms, in writing; subject to recission, when; form; voidable, when.

58-2342. Home equity protection; terms, in writing; subject to recission, when; form; voidable, when. Any assignment or transfer of the rights of the defendant owner in relation to real property which is the subject of a pending action to foreclose one or more mortgages and which is the residence of the owner is subject to the following requirements unless such transfer or assignment is made to the mortgagee or its wholly owned subsidiary as a deed in lieu of foreclosure with all rights of deficiency waived, or to a party who then resides in and uses the property as the party's residence: (a) All such transfers or assignments shall be in writing. All terms, conditions and agreements in consideration for the transfer or assignment shall be set out in detail in a written agreement, dated, and signed by all parties to the agreement. Copies of both the agreement and disclosure statement shall be provided to the transferor or assignor by the transferee or assignee. (b) All such transfers or assignments, as described in subsection (a), are subject to recission by the defendant owner within five business days, as defined by K.S.A. 45-217 , and amendments thereto, of the date of the defendant owner's execution of the agreement. Such recission, if made, shall be in writing, signed by the defendant owner, or by any one of the defendant owners if there be more than one, and mailed to the buyer by certified mail. This right of recission may not be waived, sold or abrogated in any way. (c) All such agreements, as described in subsection (a), to be effective, must contain a disclosure statement which shall be signed by all parties to the agreement and which shall be substantially in the following form: NOTICE. READ ALL OF THIS DISCLOSURE STATEMENT CAREFULLY BEFORE SIGNING IT. YOU HAVE A RIGHT TO CONSULT WITH AN ATTORNEY OR ANOTHER PERSON BEFORE SIGNING IT. YOU ARE SELLING OR GIVING UP IMPORTANT RIGHTS. I, (owner's name), as the owner of (legal description of the property being foreclosed) commonly known as (address of such property), have entered into an agreement with (buyer's name) for the sale of the above-mentioned property which is my residence. I realize I have the following rights: (1) Should this property be in foreclosure on any mortgage, I am entitled to a period of redemption following the sale in foreclosure proceedings during which period I have the right to redeem the residence. This period could be from six months to 12 months, depending on the amount of the mortgage, the unpaid balance thereof and value of the residence. (2) During the period of redemption I have the right to remain in my residence or rent it to others. (3) I have the right to sell my rights to my residence. (4) If I have paid mortgage guaranty insurance premiums, I may have other rights under the terms of the insurance agreement or under applicable state or federal law. (5) I ALSO HAVE THE RIGHT TO RESCIND ANY SALES AGREEMENT OR DEED WITH THE BUYER WITHIN FIVE BUSINESS DAYS, AS DEFINED BY K.S.A. 45-217 , AND AMENDMENTS THERETO, AFTER THE SIGNING OF THE AGREEMENT OR DEED. I CANNOT AGREE TO GIVE UP OR SELL THIS RIGHT IN ANY WAY. (6) Everything that is being promised to me or given to me for the purchase of my rights must be in the agreement signed by us. This includes the amount being paid me and any agreement concerning what efforts will be made by the buyer to bring the mortgage payments up to date and any promises concerning what will be done with any proceeds from the renting or selling of the property. Anything not in the written agreement might not be enforceable. (7) IF I SELL MY RIGHTS AND THE RESIDENCE IS FORECLOSED UPON, I MAY STILL BE RESPONSIBLE FOR ANY AMOUNTS STILL OWED ON THE RESIDENCE IF ITS SALE DOES NOT RAISE ENOUGH TO COVER THE ENTIRE MORTGAGE AND THE FORECLOSURE COSTS. IF THE RESIDENCE IS FORECLOSED UPON, IT IS LIKELY THAT THIS WILL BE REPORTED TO THOSE WHO KEEP CREDIT HISTORIES AND THIS MIGHT INJURE MY CREDIT RATING. (8) I realize this is a serious matter and that I may wish to consult with an attorney to make sure my important rights in my residence are being protected before signing any agreement. (9) This provision is not intended to deprive the homeowner of any other right under the law. ____________________________ OWNER-SELLER ___________________________ OWNER-SELLER I ACKNOWLEDGE THAT THE OWNER-SELLER'S RECISSION OF THE AGREEMENT IF MADE PURSUANT TO PARAGRAPH (5) ABOVE, MAY BE MAILED WITHIN FIVE BUSINESS DAYS TO ME BY CERTIFIED MAIL AT THE FOLLOWING ADDRESS: (BUYER'S ADDRESS) ___________________________ BUYER (d) Failure to comply with the pertinent provisions of this section shall render the transfer or assignment voidable at the election of the transferor. L. 1990, ch. 197, § 1; July 1. Law Review and Bar Journal References: "Survey of Kansas Law: Real Property," Michael J. Davis, 41 K.L.R. 669, 686 (1993).

K.S.A. 58-2343 Assignment of rents of real property; lien; action upon default.

58-2343. Assignment of rents of real property; lien; action upon default. (a) As used in this section: (1) "Assignment instrument" means any mortgage, deed of trust, or other instrument or agreement by which a borrower assigns, transfers, pledges, or otherwise grants a lien upon or encumbers its rights to rents of real property therein described to or for the benefit of a lender as security for the repayment of any indebtedness or the performance of any obligations. (2) "Borrower" means any mortgagor, deed of trust grantor, assignor, or debtor of any lender. (3) "Lender" means any mortgagee, deed of trust beneficiary, assignee, or creditor, or its assigns, holding an assignment instrument. (4) "Rents" includes the rents, income, proceeds, profits, royalties and other sums which (A) are derived under present and future leases, licenses, contracts and other agreements for the use or possession of real property and (B) are either in the possession or control of the borrower or are due and unpaid or are to become due and payable. (b) The lien of an assignment instrument shall be a good, valid and enforceable lien on the rents from the real property therein described. Such lien shall be valid and binding against, unavoidable by and fully perfected as to the borrower and all subsequent purchasers, mortgagees, lien creditors, other lienholders and other persons for all purposes from the time of filing the assignment instrument or an affidavit of assignment of rents signed by the borrower for record in accordance with K.S.A. 58-2221 and amendments thereto, with a priority dating from the time of such filing, without any necessity for the lender to take possession or control of such rents or the property from which such rents are derived, to take any action tantamount to the taking of such possession or control, or to take other action whatsoever. (c) Upon default by a borrower under the terms of an assignment instrument, the lender shall be entitled to enforce the assignment instrument in accordance with its terms and applicable law, and may apply to the district court having jurisdiction for appropriate relief to gain possession and control of the rents in enforcement of the assignment instrument. Upon such application, the court shall enter such orders and take such actions as appear necessary to collect, protect and preserve the rents and protect and preserve the lender's interest therein pending final disposition of an action upon the obligations secured by the assignment instrument. (d) Any tenant who, upon due notice from the lender, makes rent payments to the lender in accordance with the terms of the assignment instrument shall be given credit for such payment as if the payments had been made to the borrower, but nothing herein shall affect the other rights and obligations of the borrower or the tenant as to one another. L. 1991, ch. 161, § 1; May 23. Law Review and Bar Journal References: "Survey of Kansas Law: Real Property," Michael J. Davis, 41 K.L.R. 669, 689 (1993). CASE ANNOTATIONS 1. Chapter 11 debtor prohibited from using status as hypothetical judicial lien creditor to take advantage of mortgagee's vulnerability under facts. In re Stone Ridge Associates, Ltd. Partnership, 142 B.R. 967 (1992). 2. Cited; mortgagee's right to rents and profits examined. Hoelting Enterprises v. Trailridge Investors, L.P., 17 Kan. App. 2d 777, 786, 844 P.2d 745 (1993). 3. Whether mortgagee was required to take legal action to secure rents from mortgaged property before filing bankruptcy examined. In re Kansas Office Associates, Ltd., 173 B.R. 745, 749 (1994).

K.S.A. 58-2344 Authorized use of real estate values furnished to appraisers by lenders.

58-2344. Authorized use of real estate values furnished to appraisers by lenders. No lender, as defined in K.S.A. 58-2337 , and amendments thereto, or any person acting on behalf of a lender shall disclose to an appraiser or other person engaged to determine the appraised value of real estate, the amount of a proposed real estate loan with the intent to influence the preferred or required value of any real estate intended to secure such loan. A lender may provide a copy of the sales contract for use by the appraiser in accordance with uniform standards of professional appraisal practice. L. 2006, ch. 97, § 2; L. 2007, ch. 126, § 1; July 1.

K.S.A. 58-2345 Appraisal of unique rural residential real property; sales comparison approach not required; exceptions.

58-2345. Appraisal of unique rural residential real property; sales comparison approach not required; exceptions. (a) In developing an appraisal of residential real property identified as unique in style or square footage, or both, located in a rural county for the purpose of a mortgage finance transaction, if the sales comparison approach cannot be developed for a credible opinion or indication of value due to a lack of available comparable sales within 30 miles, the appraiser may perform the appraisal without completing the sales comparison approach to value. In the appraisal report, the appraiser shall provide an explanation of the reasons for exclusion of the sales comparison approach and document efforts to obtain comparable sales or market data. A financial institution shall not decline to proceed with a mortgage finance transaction due to the exclusion of the sales comparison approach in accordance with this section unless the sales comparison approach is required in order for such mortgage finance transaction loan to be guaranteed or sold in the secondary market. (b) As used in this section: (1) "Financial institution" means a bank, national banking association, savings and loan association, savings bank, trust company, credit union, finance company or other lending institution; and (2) "rural county" means any county in this state with a population of less than 10,000, as certified to the secretary of state pursuant to K.S.A. 11-201 , and amendments thereto, on July 1 of the preceding year. L. 2022, ch. 85, § 20; July 1.
Source: Kansas Office of Revisor of Statutes (ksrevisor.gov)URL: https://www.ksrevisor.gov/statutes/ksa_ch58.htmlFetched: 10/20/2026

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